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ELCDismissedKerugoya ELC Case (Notice of Motion dated 3rd February 2020, arising from Kerugoya Chief Magistrate's Court ELC Case No. 101 of 2018)· [2020] KEELC 1640 (KLR)

Job Muriithi Waweru v Mary Waruguru Munene [2020] KEELC 1640 (KLR)

Environment and Land Court
3 July 2020
3,302 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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The Kerugoya Environment and Land Court refused to halt a land judgment, ruling that a lawyer's inaction cannot excuse missing appeal deadlines.

What this practically means

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Executive summary

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The applicant moved the Environment and Land Court at Kerugoya by Notice of Motion dated 3rd February 2020 under Sections 1A, 1B, 79G and 95 of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules. He sought a stay of execution of the decree dated 9th May 2019 and issued on 17th June 2019 in Kerugoya Chief Magistrate's Court ELC Case No. 101 of 2018, a stay of proceedings in that suit, leave to appeal out of time against the judgment of Hon. E.O. Wambo (SRM), and that his Notice and Memorandum of Appeal be deemed filed. The lower court had awarded the respondent a half share of land parcel INOI/THAITA/2878 after the applicant's default; his application to set aside the default judgment was dismissed on 24th October 2019. The applicant blamed his former advocates, A.N. Chomba & Co. Advocates, for failing to file a defence and for not informing him of the ruling. The respondent opposed, asserting inordinate delay and that the applicant had had his chance to be heard. The court applied the three limbs of Order 42 Rule 6: it found no substantial loss demonstrated, noting that execution per se is a lawful process; it found the application filed after unexplained delay, holding that a duly instructed advocate's omissions are visited on the client and that pure inaction is not excusable; and it noted the absence of security. On extension of time, the discretion under Section 79G could not be exercised without material explaining the advocate's failures. The notice of motion was dismissed with costs to the respondent.

Key legal issues

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01

Substantial loss for stay pending appeal

Holding

The applicant failed to demonstrate substantial loss

Reasoning

Relying on James Wangalwa v Agnes Naliaka Cheseto, the court held that execution being set in motion is a lawful process and does not by itself constitute substantial loss; the applicant must show execution would irreparably affect the essential core of his position as intended appellant. The supporting affidavit stated no substantial loss, so the first limb of Order 42 Rule 6 failed.

p. 3
02

Unreasonable delay and advocate negligence

Holding

The application was brought after unexplained delay attributable to the applicant's own advocate

Reasoning

Judgment was delivered on 9th May 2019 and the application filed on 3rd February 2020. The applicant blamed A.N. Chomba & Co. Advocates for failing to file a defence and to inform him of the ruling of 24th October 2019. Following Velji Shahmad and Berber Alibhal Mawji, the court held that an advocate's omissions are visited on the principal, and pure inaction is not excusable, making the delay fatal.

p. 4
03

Security for due performance of the decree

Holding

No security was given or offered

Reasoning

Order 42 Rule 6(2)(b) requires the applicant to furnish such security as the court orders for due performance of the decree. The applicant neither gave security nor undertook to abide by conditions, so the third requirement for stay was unmet.

p. 4
04

Leave to appeal out of time under Section 79G CPA

Holding

Leave refused because the discretion could not be exercised on the material placed before the court

Reasoning

Citing Apa Insurance Limited v Michael Kinyanjui Muturi, the court noted the power is discretionary and not a matter of right; the applicant must place material before the court justifying exercise of the discretion. Neither the applicant nor his former advocates explained the failure to file a defence or appeal within time, so leave and deeming orders were refused.

p. 4

Legal principles established

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  • The acts and omissions of a duly instructed advocate are deemed to be acts of the client and blame cannot be shifted to the advocate
  • Inaction by an advocate, as opposed to error or slip, does not excuse delay and should not be shielded from the client
  • Extension of time under Section 79G CPA is discretionary, not a right, and requires material upon which the discretion may be exercised
  • Execution alone does not amount to substantial loss under Order 42 Rule 6

Court orders

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  1. 1.The Notice of Motion dated 3rd February 2020 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1A(3), 1B, 79G, 95
  • Civil Procedure RulesOrder 42 Rule 6; Order 51 Rule 1
  • Land ActSection 49
  • Land Registration ActSection 60
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (10)

  • James Wangalwa & Another Vs Agnes Naliaka Cheseto
    Misc. Application No. 42 of 2011 (2012) e K.L.R
  • Silverstein Vs Chesoni
    (2002) 1 K.L.R 867
  • Mukuma Vs Abuoga
  • Peter Rugu Gikanga & another Vs Weston Gitonga & 10 others
    (2014) e K.L.R, H.C. at Nakuru Civil Case No. 148 of 2010
  • Jaber Mohsen Ali & Another Vs Priscillah Boit & Another
    E & L No. 200 of 2012 (2014) e K.L.R
  • Christopher Kendagor Vs Christopher Kipkorir
    Eldoret ELC 919 of 2012
  • Velji Shahmad Vs Shamji Bros. and Popatlal Karman & Co.
    (1957) E.A 438
  • Berber Alibhal Mawji Vs Sultan Hasham Lalji & 2 others
    (1990 - 1991) E.A 337
  • Apa Insurance Limited Vs Michael Kinyanjui Muturi
    (2016) e K.L.R
  • Trust Bank Vs Portway Stones (1993) Ltd and others
    Nairobi (Milimani) HCC No. 413/1997; LLR 1310 (CCK) (2001) 1 EA 269
On appeal from
Kerugoya Chief Magistrate's Court
ELC Case No. 101 of 2018
Jurisdiction invoked
Sections 1A, 1B, 79G and 95 of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Job Muriithi Waweru v Mary Waruguru Munene [2020] KEELC 1640 (KLR)", Case Analysis (2020). Kerugoya ELC Case (Notice of Motion dated 3rd February 2020, arising from Kerugoya Chief Magistrate's Court ELC Case No. 101 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1640/eng@2020-07-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.